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MEDIA ARTS GROUP, INC.
CONSULTING AGREEMENT
This Consulting Agreement, including the attached Exhibits ("Agreements")
is made and entered into effective the 1st day of April, 2000, by and
between MEDIA ARTS GROUP, INC.("MAGI"), a Delaware corporation, and Mike
Kiley ("Consultant"). MAGI desires to retain Consultant as an
independent contractor to perform consulting services for MAGI as set
forth below, and Consultant is willing to perform such services, on terms
set forth more fully below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
a. Consultant agrees to perform for MAGI the services described in the
attached EXHIBIT A ("Services").
b. MAGI agrees to pay Consultant the compensation set forth in the attached
EXHIBIT B for the performance of the Services.
2. CONFIDENTIALITY
a. "Confidential Information" means any MAGI proprietary information,
technical data, trade secrets or know-how, including, but not limited
to, research, product plans, products, services, suppliers, supplier
lists, customers, customer lists, markets, software, developments,
Developments, processes, formulas, technology, designs, drawings,
engineering, marketing, finances or other business information disclosed
by MAGI either directly or indirectly in writing, orally, electronically,
or by drawings or inspection of parts or equipment.
b. Consultant will not, during or subsequent to the term of this
Agreement, use Confidential Information for any purpose whatsoever other
than the performance of the Services on behalf of MAGI or disclose
Confidential Information to any third party. Consultant agrees that
Confidential Information shall remain the sole property of MAGI.
Consultant agrees to take all reasonable precautions to prevent
unauthorized disclosure of Confidential Information. Notwithstanding the
above, Consultant's obligation under this Section 2(b) relating to
Confidential Information shall not apply to information which
i. is known to Consultant at the time of disclosure to Consultant by MAGI
as evidenced by written records of Consultant;
ii. has become publicly known and made generally available through no
wrongful act of Consultant, or
iii. has been rightfully received by Consultant from a third party
authorized to make such a disclosure.
c. Consultant agrees that Consultant will not, during the term of this
Agreement, improperly use or disclose any proprietary information or
trade secrets of any former or current employer or any other person or
entity with which Consultant has an agreement or a duty to keep in
confidence information acquired by Consultant in confidence and that
Consultant will not bring onto the premises of MAGI any unpublished
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document or proprietary information belonging to such an employer,
person, or entity unless consented to in writing by such employer,
person, or entity. Consultant will indemnify MAGI and hold it harmless
from and against all claims, liabilities, damages and expenses, including
reasonable attorneys' fees and costs of suit, arising out of or in
connection with any violation or claimed violation of a third party's
rights resulting in whole or in part from MAGI's use of the work product
of Consultant under this Agreement.
d. Consultant recognizes that MAGI has received and in the future will
receive from third parties their confidential or proprietary information
subject to a duty on MAGI's part to maintain the confidentiality of such
information and use it only for certain limited purposes. Consultant
agrees that Consultant owes MAGI and such third parties, during the term
of this Agreement and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to disclose
it to any person, firm or corporation or to use it except as necessary in
carrying out the Services for MAGI consistent with MAGI's agreement with
such third party.
e. Upon the termination of this Agreement, or upon MAGI's earlier
request, Consultant will deliver to MAGI all of MAGI's property relating
to, and all tangible and electronic embodiments of, Confidential
Information in Consultant's possession or control.
f. Consultant represents and warrants that each employee of Consultant,
and each independent contractor of Consultant, if any, has executed an
agreement with Consultant containing provisions in MAGI's favor
substantially similar to this Section 2.
3. OWNERSHIP
a. Consultant agrees that all copyrightable material, notes, records,
drawings, designs, developments, improvements, developments, discoveries
and trade secrets (collectively, "Developments") conceived, made or
discovered by Consultant in performing the Services, solely or in
collaboration with others, during the term of this Agreement relating to
the business of MAGI shall be the sole property of MAGI. In addition, to
the extent allowed by law, any Developments which constitute
copyrightable subject matter shall be considered "works made for hire" as
that term is defined in the United States Copyright Act. Consultant
further agrees to assign (or cause to be assigned) and does hereby assign
fully to MAGI all such Developments and any copyrights, patents, mask
work rights, or other intellectual property rights relating thereto.
b. Upon the termination of this Agreement, or upon MAGI's earlier
request, Consultant will deliver to MAGI all of MAGI's property relating
to, and all embodiments of, Developments in Consultant's possession and control.
c. Consultant agrees to assist MAGI, or its authorized representative, at
MAGI's expense, to obtain and from time to time enforce and defend MAGI's
rights in the Developments and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto in any and all
countries, and to execute all documents reasonably necessary for MAGI to
do so.
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d. MAGI agrees that if in the course of performing the Services,
Consultant incorporates into any Development developed hereunder any
invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant has an
interest ("Item"), MAGI is hereby granted and shall have a nonexclusive,
royalty-free, perpetual, irrevocable worldwide license to make, have
made, modify, reproduce, display, use and sell such Item as part of or in
connection with such Invention.
e. Consultant agrees that if MAGI is unable because of Consultant's
unavailability, dissolution, mental or physical incapacity, or for any
other reason, to secure Consultant's signature to apply for or to pursue
any application for any United States or foreign patents or mask work or
copyright registrations covering the Developments assigned to MAGI above,
then Consultant hereby irrevocably designates and appoints MAGI and its
duly authorized officers and agents as Consultant's agent and attorney-in-
fact, to act for and in Consultant's behalf and stead to execute and file
any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed
by Consultant.
f. Consultant represents and warrants that each employee of Consultant,
and each independent contractor of Consultant, if any, has executed an
agreement with Consultant containing provisions in MAGI's favor
substantially similar to this Section 3.
g. Notwithstanding any other provision of this Section 3, the provisions
of this Section 3 shall not apply to any Invention that qualifies in all
respects under Section 2870 of the California Labor Code, which provides:
a. Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities or trade secret information,
except for those Developments that either: (1) Relate at the time of
conception or reduction to practice of the invention to the employer's
business, or actual demonstrably anticipated research or development of
the employer. (2) Result from any work performed by the employee for the
employer.
b. To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against
the public policy of this state and is unenforceable."
Consultant shall advise MAGI promptly and in writing of any of his or her
previous or future works or Developments which he believes qualify under
the California Labor Code Section 2870. MAGI agrees to receive such
information in confidence.
4. CONFLICTING OBLIGATIONS
a. Consultant certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this
Agreement, or that would preclude Consultant from complying with the
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provisions hereof, and further certifies that Consultant will not enter
into any such conflicting agreement during the term of this Agreement.
b. Consultant represents and warrants that each employee of Consultant,
and each independent contractor of Consultant, if any, has executed an
agreement with Consultant containing provisions in MAGI's favor
substantially similar to this Agreement.
5. TERM AND TERMINATION
a. This Agreement will commence on the date first written above and will
continue for twelve (12) months or until termination as provided below.
b. MAGI may terminate this Agreement upon giving sixty (60) days prior
written notice thereof to Consultant. Any such notice shall be addressed
to Consultant at the address shown below or such address as Consultant
may notify MAGI of and shall be deemed given upon delivery if personally
delivered, or forty-eight (48) hours after being deposited in the United
States mail, postage prepaid, registered or certified mail, return
receipt requested. MAGI may terminate this Agreement immediately and
without prior notice if Consultant refuses or is unable to perform the
Services, or is in breach of any material provision of this Agreement.
Upon such termination all rights and duties of the parties shall cease
except: (i) that MAGI shall be obligated to pay, within thirty (30) days
of the effective date of termination, all amounts owing to Consultant for
unpaid services and related expenses, if any, in accordance with the
provisions of Section 1 (Services and Compensation) hereof; and (ii)
Sections 2 (Confidentiality), 3 (Ownership), 7 (Independent Contractors)
hereof shall survive termination of this Agreement.
6. ASSIGNMENT Neither this Agreement nor any right hereunder or interest
herein may be assigned or transferred by Consultant without the express
written consent of MAGI.
7. INDEPENDENT CONTRACTORS Nothing in this Agreement shall in any way be
construed to constitute Consultant as an agent, employee or
representative of MAGI, but Consultant shall perform the Services
hereunder as an independent contractor. Consultant acknowledges and
agrees that he is not authorized to enter into legally binding
obligations or agreements on behalf of MAGI. Consultant acknowledges and
agrees that Consultant is obligated to report as income all compensation
received by Consultant pursuant to this Agreement, and Consultant agrees
to indemnify MAGI and hold it harmless to the extent of any obligation
imposed on MAGI (i) to pay withholding taxes or similar items or (ii)
resulting from Consultant's being determined not to be an independent
contractor.
8. ARBITRATION, EQUITABLE RELIEF AND ATTORNEYS FEES
a. Except as provided in Section 8(b) below, MAGI and Consultant agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement,
shall be settled by arbitration to be held in San Jose, California, by
the American Arbitration Association and in accordance to the then
current rules thereof. The arbitrator may grant injunctions or other
relief in such dispute or controversy. The decision of the arbitrator
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shall be final and may be enforced in any court of competent
jurisdiction. In the event that any legal action or arbitration is
brought by any party hereunder, the prevailing party shall be entitled to
recover from the other party all reasonable costs, expenses and attorneys
fees incurred therein.
b. Consultant agrees that it would be impossible or inadequate to measure
and calculate MAGI's damages from any breach of the covenants set forth
in Sections 2 or 3 herein. Accordingly, Consultant agrees that if
Consultant breaches Section 2 or 3, MAGI has, in addition to any other
right or remedy available, the right to obtain from any court of
competent jurisdiction an order restraining such breach or threatened
breach and specific performance of any such provision. Consultant
further agrees to the extent provided by law that no bond or other
security shall be required in obtaining such equitable relief and
Consultant hereby consents to the issuance of such injunction and the
ordering of such specific performance.
9. GOVERNING LAW This Agreement shall be governed by, and construed and
interpreted under, the laws of the State of California without reference
to conflict of laws principles.
10. ENTIRE AGREEMENT This Agreement and the Exhibits hereto form the
entire agreement of the parties and supersedes any prior agreements
between them with respect to the subject matter hereof.
11. WAIVER Waiver of any term or provision of this Agreement or
forbearance to enforce any term or provision by either party shall not
constitute a waiver as to any subsequent breach or failure of the same
term or provision or a waiver of any other term or provision of this
Agreement.
12. MODIFICATION No modification to this Agreement, nor any waiver of
any rights, shall be effective unless assented to in writing by the party
to be charged.
13. COUNTERPARTS This Agreement may be executed in counterpart, each of
which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
14. INTERPRETATION Consultant and MAGI agree that this Agreement was the
product of negotiation, with each party having the opportunity to propose
modification of terms. Accordingly, any ambiguity in this Agreement
shall not be construed for or against any party based upon who prepared
such terms; the parties hereby expressly waive California Civil Code
Section 1654 with respect thereto.
15. SEVERABILITY Should any provision of this Agreement be found to be
void or unenforceable, the remainder of this Agreement shall remain in
full force and effect.
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IN WITNESS WHEREOF, the undersigned are duly authorized to execute this
Agreement on behalf of Consultant and MAGI as of the day and year written
above.
CONSULTANT: MEDIA ARTS GROUP INC.
521 Charcot Ave.
San Jose, CA 95131
By: /s/ Mike Kiley By: /s/ Craig Fleming
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Mike Kiley Print Name: Craig Fleming
Address: 6415 Bevil Court Title: President & CEO
San Jose, CA 95123
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EXHIBIT A
Services to be performed by Consultant:
16. Assist Thomas Kinkade on Company matters as requested by Company CEO;
17. Advise Company on issues relating to Company's presence in the
Christian Market, including, but not limited to advice pertaining to
opening potential markets for Company branded products;
18. Perform other functions as directed by the Company CEO.
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EXHIBIT B
Compensation of Consultant:
19. Base Rate of Pay: $6,000.00 per month, with payment to be made on
the first day of the month. The Company shall receive up to 5 hours per
week in exchange for this Base Rate of Pay.
20. Hourly Rate: For services in excess of 5 hours per week, and as
requested by the Company CEO, Consultant shall be paid the rate of
$300.00 per hour.
